Citation Nr: 0815225
Decision Date: 05/08/08 Archive Date: 05/14/08
DOCKET NO. 06-31 642A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUE
Entitlement to an evaluation in excess of 40 percent for
lumbosacral strain with degenerative disc disease, to include
radiculopathy of the lower extremities.
REPRESENTATION
Appellant represented by: Lawrence D. Levin, Esq.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W. Donnelly, Associate Counsel
INTRODUCTION
The veteran had active duty service with the United States
Air Force from October 1962 to February 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2005 rating decision by the
Philadelphia, Pennsylvania, Regional Office (RO) of the
Department of Veterans Affairs (VA) which denied an increased
evaluation for a low back disability.
In January 2008, the veteran, through his representative,
moved for advancement of his case on the docket due to age
and his declining health. That motion was granted in
February 2008. The veteran presented testimony at a February
2008 personal hearing, held before the undersigned Acting
Veterans Law Judge via videoconference from the RO. The
veteran requested, and was granted, a 30 day extension in
which to file additional medical evidence, which has now been
received by the Board. Further, the Board has accepted the
veteran's request to make a decision on the record, without a
remand for additional evidentiary development, as a waiver of
initial consideration of the newly submitted evidence by the
agency of original jurisdiction.
The veteran appears to have raised new claims of service
connection for left and right knee disabilities, left and
right hip disabilities, and a stomach disorder, all as
secondary to the service connected low back disability.
Moreover, the Board notes that the veteran has repeatedly
alleged that he is unable to work due to his service
connected disabilities. In light of the decision here, the
veteran meets the schedular eligibility requirements for a
total disability rating based on individual unemployability.
As per Policy and Procedures Manual M21-1MR IV.ii.2.F.25.h
and Norris v. West, 12 Vet. App. 413 (1999), a claim for
benefits may be inferred. These issues are referred to the
RO for appropriate action.
FINDINGS OF FACT
1. The veteran's lumbosacral strain with degenerative disc
disease is manifested by limitation of flexion to less than
30 degrees, without findings of favorable or unfavorable
ankylosis; the major limitation is caused by chronic pain.
2. Chronic right lower extremity radicular pain is diagnosed
as of May 16, 2003; doctors note mild impairment due to right
lower extremity radiculopathy beginning December 12, 2005.
3. Chronic left lower extremity radicular pain is diagnosed
as of December 12, 2005, when doctors noted mild impairment
of the left lower extremity.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 40 percent
for lumbosacral strain with degenerative disc disease are not
met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 &
Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.71a, Diagnostic
Code 5237, Note (5) (2007).
2. A separate 10 percent evaluation for right lower
extremity radiculopathy is warranted from December 12, 2005.
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.
2007); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.71a, Diagnostic Code
5237, Note (1), 4.124a, Diagnostic Code 8520 (2007).
3. A separate 10 percent evaluation for left lower extremity
radiculopathy is warranted from December 12, 2005.
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.
2007); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.71a, Diagnostic Code
5237, Note (1), 4.124a, Diagnostic Code 8520 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper VCAA notice must inform the claimant of
any information and evidence not of record that is necessary
to substantiate the claim. The claimant should be informed
as to what portion of the information and evidence VA will
seek to provide, and what portion of such the claimant is
expected to provide. Proper notification must also invite
the claimant to provide any evidence in his possession that
pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). This notice must be provided prior to an
initial unfavorable decision on a claim by the agency of
original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d
1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App.
112 (2004).
The United States Court of Appeals for Veterans Claims has
interpreted the duty to notify in the context of specific
types of claims. For an increased-compensation claim, as
here, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the
Secretary notify the claimant that, to substantiate a claim,
the claimant must provide, or ask the Secretary to obtain,
medical or lay evidence demonstrating a worsening or increase
in severity of the disability and the effect that worsening
has on the claimant's employment and daily life. Vazquez-
Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the
Diagnostic Code under which the claimant is rated contains
criteria necessary for entitlement to a higher disability
rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity
of the disability and the effect that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at
least general notice of that requirement to the claimant.
Additionally, the claimant must be notified that, should an
increase in disability be found, a disability rating will be
determined by applying relevant Diagnostic Codes, which
typically provide for a range in severity of a particular
disability from noncompensable to as much as 100 percent
(depending on the disability involved), based on the nature
of the symptoms of the condition for which disability
compensation is being sought, their severity and duration,
and their impact upon employment and daily life. As with
proper notice for an initial disability rating and consistent
with the statutory and regulatory history, the notice must
also provide examples of the types of medical and lay
evidence that the claimant may submit (or ask the Secretary
to obtain) that are relevant to establishing entitlement to
increased compensation-e.g., competent lay statements
describing symptoms, medical and hospitalization records,
medical statements, employer statements, job application
rejections, and any other evidence showing an increase in the
disability or exceptional circumstances relating to the
disability. Vazquez-Flores, supra.
Here, the VCAA duty to notify has not been fully satisfied.
The notice letter sent to the veteran in April 2005 provided
sufficient notice of what evidence and information was
generally required to substantiate the claim, as well as the
respective obligations of the veteran and VA in obtaining
such evidence and information. It requested that the veteran
submit any evidence in his possession. It did not, however,
inform the veteran of the specific range of motion benchmarks
used to evaluate back disabilities. The notice instead
informed the veteran that he must show his service connected
disability had increased in severity.
In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the
United States Court of Appeals for the Federal Circuit held
that any error by VA in providing the notice required by 38
U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed
prejudicial, and that once an error is identified as to any
of the four notice elements the burden shifts to VA to
demonstrate that the error was not prejudicial to the
appellant. The Federal Circuit stated that requiring an
appellant to demonstrate prejudice as a result of any notice
error is inconsistent with the purposes of both the VCAA and
VA's uniquely pro-claimant benefits system.
Instead, the Federal Circuit held in Sanders that all VCAA
notice errors are presumed prejudicial and require reversal
unless VA can show that the error did not affect the
essential fairness of the adjudication. To do this, VA must
show that the purpose of the notice was not frustrated, such
as by demonstrating: (1) that any defect was cured by actual
knowledge on the part of the claimant, see Vazquez-Flores, 22
Vet. App. 37 ("Actual knowledge is established by statements
or actions by the claimant or the claimant's representative
that demonstrate an awareness of what was necessary to
substantiate his or her claim.") (citing Dalton v. Nicholson,
21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person
could be expected to understand from the notice what was
needed; or (3) that a benefit could not have been awarded as
a matter of law. Sanders, 487 F.3d at 889. Additionally,
consideration also should be given to "whether the post-
adjudicatory notice and opportunity to develop the case that
is provided during the extensive administrative appellate
proceedings leading to the final Board decision and final
Agency adjudication of the claim ... served to render any pre-
adjudicatory section 5103(a) notice error non-prejudicial."
Vazquez-Flores, 22 Vet. App. 37.
In this case, the Board finds that the notice error did not
affect the essential fairness of the adjudication, and
adjudication may proceed. While the veteran has not been
provided with notice of the specific range of motion
measurements and other benchmarks included in the criteria
applicable to evaluation of his low back disability, he has
demonstrated actual knowledge of those criteria, rendering
the defect in notice non-prejudicial. At the February 2008
videoconference hearing before the undersigned, the veteran
and his representative discussed the veteran's range of
motion of the lumbar spine; the additional impact of factors
such as pain, weakness, and fatigue on his functional
ability; and the affect of the disability on the veteran's
employment and daily life. They additionally detailed all
manifestations of the low back disability, to include lower
extremity radiculopathy. In the absence of prejudice to the
veteran, adjudication of the claim for increased evaluation
may proceed.
VA additionally has a duty to assist the claimant in the
development of the claim. This duty includes assisting in
the procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993). The veteran submitted private
treatment records from Dr. BSG, Dr. RNS, and the Hospital at
the University of Pennsylvania. He was provided an
opportunity to set forth his contentions during the hearing
before the undersigned Acting Veterans Law Judge. The
veteran was afforded VA medical examinations in May 2005 and
August 2006. Significantly, neither the veteran nor his
representative has identified, and the record does not
otherwise indicate, any additional existing evidence that is
necessary for a fair adjudication of the claim that has not
been obtained. There is no evidence of regular VA treatment,
and the veteran has not supplied requested releases for the
full records of his private providers. The Board notes that
at his February 2008 hearing, the veteran and his
representative requested that no additional evidentiary
development be undertaken, as there was no outstanding
evidence and, they felt, no need for an additional VA
examination. Hence, no further notice or assistance to the
veteran is required to fulfill VA's duty to assist the
veteran in the development of the claim. Smith v. Gober,
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir.
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see
also Quartuccio, 16 Vet. App. 183. Adjudication of the claim
for increased evaluation may proceed.
Legal Criteria
Disability evaluations are determined by the application of
the facts presented to VA's Schedule for Rating Disabilities
(Rating Schedule) at 38 C.F.R. Part 4. The percentage
ratings contained in the Rating Schedule represent, as far as
can be practicably determined, the average impairment in
earning capacity resulting from diseases and injuries
incurred or aggravated during military service and the
residual conditions in civilian occupations. 38 U.S.C.A.
§ 1155; 38 C.F.R. §§ 3.321(a), 4.1.
In evaluating the severity of a particular disability, it is
essential to consider its history. 38 C.F.R. § 4.1; Peyton
v. Derwinski, 1 Vet. App. 282 (1991). Where there is a
question as to which of two evaluations shall be applied, the
higher rating will be assigned if the disability picture more
nearly approximates the criteria required for that
evaluation. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7.
Compensation for service-connected injury is limited to those
claims which show present disability. Where entitlement to
compensation has already been established and an increase in
the disability rating is at issue, the present level of
disability is of primary importance. Francisco v. Brown,
7 Vet. App. 55, 58 (1994). Separate ratings may be assigned
for separate periods of time based on the facts found,
however. This practice is known as "staged" ratings."
Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v.
Mansfield, 21 Vet. App. 505 (2007).
If the evidence for and against a claim is in equipoise, the
claim will be granted. A claim will be denied only if the
preponderance of the evidence is against the claim. See 38
U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v.
Derwinski, 1 Vet. App. 49, 56 (1990).
Factual Background
The veteran underwent a VA spine examination in May 2003, in
connection with an earlier claim for increased evaluation.
At that time, the veteran complained of pain in the low back
with intermittent radiation down the right leg. The right
leg was also weak at times. The veteran took Motrin for back
pain. On physical examination, there was mild to moderate
spasm in the lumbar region. Forward flexion was limited to
50 degrees, extension was to 10 degrees, and lateral rotation
and lateral flexion were each to 15 degrees bilaterally.
Deep tendon reflexes were symmetrical, and sensory
examination was unremarkable. Strength was 5/5. Ankle
reflexes were preserved. The examiner diagnosed a
lumbosacral strain/sprain syndrome with radicular features,
with no evidence of fatigability or incoordination. The
doctor opined that the veteran's condition was subject to
progression.
A February 2004 VA x-ray report shows degenerative changes of
the facets at L5-S1, which the interpreter opined may be
causing the veteran's complaints of hip pain.
The veteran was examined in connection with the current claim
in May 2005. He stated that he had developed arthritis and
degenerative disc disease of the lumbar spine; the veteran
supplied an MRI showing degenerative changes. He complained
of achy pain, tightness in the low back muscles with
stiffness and spasm. He reported that three or four days a
month his symptoms flared and he had trouble getting out of
bed. He used a back brace and a cane when walking his dog.
He was able to walk three blocks before resting. He reported
intermittent pain radiating down the right leg, but could not
give clear details as to the frequency or severity of this
pain. The veteran had not been bed ridden in the past year,
but he did state he was semi-retired and could not work as an
electrician. Bending, turning, pushing, and twisting were
problematic. Physical examination revealed tenderness and
spasm of the paravertebral lumbar spine muscles. Forward
flexion was to 40 degrees, extension was to 10 degrees,
lateral rotation was to 10 degrees bilaterally, and lateral
flexion was to 20 degrees bilaterally. Repeated movements
produced no increase in pain, fatigue, weakness, or
incoordination. Pain was the limiting factor on movement.
Neurological examination showed 5/5 muscle strength, with
intact ankle reflexes and symmetrical deep tendon reflexes.
Sensory examination was unremarkable. The examiner diagnosed
sprain/strain with progression to degenerative joint disease.
The examiner noted that the veteran was a "non-specific"
historian and the degree of impairment during flare-ups could
not be estimated due to the fluctuation in the veteran's
descriptions of symptoms.
A private doctor, Dr. RNS, examined the veteran in December
2005 and submitted a summary report of his findings. The
veteran reported that his back had begun hurting regularly in
approximately 1993, and had grown worse since 2003. The pain
was no radiating down his legs. He reported instability, a
bucking sensation of the legs, and weakness of the back and
legs. The veteran wore a lumbar support. He experienced
flare-ups of symptoms weekly; they had formerly been monthly.
Physical examination showed a flattening of the lumbar
lordosis and tension and tenderness in the paralumbar
muscles. Pain is aggravated by attempted flexion or
extension. Straight leg raises caused "pulling." No
significant neurological asymmetry or pathological reflexes
were noted. A June 2003 MRI showed desiccation and
protrusion of the discs at L5-S1, L4-L5, and L3-L4 levels.
Dr. RNS diagnosed a lumbosacral sprain as well as discogenic
disease and facet arthropathy causing foraminal stenosis and
sciatica. Although the doctor did not note specific
measurements, he reported a limitation of motion of the back,
as well as weakness and fatigability of the back and legs.
The examiner felt the condition had worsened recently, and
stated the veteran could only walk about 11/2 to 2 blocks
before resting.
During an August 2006 VA examination, the veteran reported
that his pain had become constant, and was present every day.
He takes over the counter medications for pain. The veteran
described tightness and achiness in the lower back, with pain
radiating to the legs. He used a cane, but eh examiner
related its use to knee problems. The veteran contended that
the cane was required due to the back. He does wear a back
brace, however. Physical examination revealed tenderness and
spasm of the lumbar spine, with forward flexion to 20
degrees, extension to 10 degrees, and lateral rotation and
flexion to 15 degrees each, bilaterally. Strength was 5/5
and the sensor examination was unremarkable. Deep tendon
reflexes were symmetrical. An antalgic gait was attributed
to a knee condition by the doctor. Chronic lower back
sprain/strain with degenerative joint disease was diagnosed.
There was no restriction of walking due to the back
condition. There were mild radicular symptoms of the lower
extremities. The veteran had not been bed ridden in the past
year.
Dr. BSG, a private orthopedist, examined the veteran in
December 2006. He had treated the veteran previously
following an accident in 2001; the veteran had injured his
neck and had upper extremity complaints at that time. The
doctor stated that the veteran id not injure his lower back
in the 2001 accident. Physical examination showed spasm of
the lumbar spine, with limitation of motion to 75 to 80
percent of normal. Deep tendon reflexes were grossly intact
in the lower extremities. MRI showed multilevel disc bulges
and degenerative disc disease of the lumbar spine. Sciatic
pain was adduced on the left with a straight leg raise, but
not on the right.
The veteran was hospitalized in June and July 2007 due to his
diagnosis with pancreatic cancer. A discharge summary from
the University of Pennsylvania Hospital shows complaints of
chronic back pain.
During his videoconference hearing in February 2008, the
veteran reported back pain when standing, twisting, or
bending. He uses only over the counter painkillers whenever
possible to avoid stomach upset, but these are not fully
effective. He also restricts his activity level to avoid
pain or to recover from strenuous activity. He uses a cane
because of balance problems. Flare-ups occur three to four
times in six months, and, in the words of the veteran, can be
incapacitating for up to two weeks. He will sleep sitting up
instead of lying down, and has difficulty getting dressed.
The veteran and his representative stressed the degree of
impairment of his range of motion, and the effect pain had on
his actual functional capacity. The veteran also reported a
sharp pain shooting down his legs, with numbness.
Following the hearing, the veteran was again evaluated by Dr.
BSG. In February 2008, the doctor noted lumbar movement was
restricted to 75 percent of normal, and it was painful in
flexion and extension. Straight leg raises produced back
pain, but no sciatic pain. Deep tendon reflexes were intact.
Dr. BSG, an orthopedist, stated that there was no discrete
radiculopathy.
Analysis
Lumbosacral Strain with Degenerative Disc Disease
The veteran's low back disability is currently evaluated
under Diagnostic Code 5237, for lumbosacral or cervical
strain. This Code directs that a general rating formula for
back conditions be applied, which provides in pertinent part
that a 40 percent disability rating is assigned for forward
flexion of the thoracolumbar spine 30 degrees or less, or for
favorable ankylosis of the entire thoracolumbar spine. A 50
percent disability rating is available for unfavorable
ankylosis of the entire thoracolumbar spine. A 100 percent
disability rating is available for unfavorable ankylosis of
the entire spine. See 38 C.F.R. § 4.71a.
The Board has given due consideration to evaluation of the
low back disability under alternative Diagnostic Codes. Disc
disease may be evaluated under Diagnostic Code 5243, for
intervertebral disc syndrome. The criteria for that Code
provide a 40 percent disability rating for incapacitating
episodes having a total duration of at least 4 weeks but less
than 6 weeks during the past 12 months; and a 60 percent
disability rating for incapacitating episodes having a total
duration of at least 6 weeks during the past 12 months. An
incapacitating episode is defined as a period of acute signs
and symptoms due to intervertebral disc syndrome that
requires bed rest prescribed by a physician and treatment by
a physician. 38 C.F.R. § 4.71a. The veteran's decision,
without orders from a doctor, to rest for a day or take to
his bed or restrict his activity does not meet the definition
of an incapacitating episode; in the absence of any evidence
that a doctor has ordered the veteran to bed rest, evaluation
under these criteria is not to the veteran's advantage.
The measured limitation of motion, to less than 30 degrees
flexion of the lumbar spine, warrants assignment of a 40
percent evaluation. There is no finding of unfavorable
ankylosis of the lumbar spine by private or VA doctors which
would warrant assignment of a higher evaluation. Evaluation
of a service-connected disability involving a joint rated on
limitation of motion, however, requires adequate
consideration of functional loss due to pain under 38 C.F.R.
§ 4.40 and functional loss due to weakness, fatigability,
incoordination or pain on movement of a joint under 38 C.F.R.
§ 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The
provisions of 38 C.F.R. § 4.40 state that disability of the
musculoskeletal system is primarily the inability, due to
damage or inflammation in parts of the system, to perform
normal working movements of the body with normal excursion,
strength, speed, coordination and endurance. Functional loss
may be due to the absence of part, or all, of the necessary
bones, joints and muscles, or associated structures. It may
also be due to pain supported by adequate pathology and
evidenced by visible behavior of the claimant undertaking the
motion. 38 C.F.R. § 4.40. The factors of disability
affecting joints are reduction of normal excursion of
movements in different planes, weakened movement, excess
fatigability, swelling and pain on movement. 38 C.F.R.
§ 4.45.
The Board has considered the actual functional impairment of
the veteran's lumbar spine disability, but finds that the
disability does not rise to the equivalent of unfavorable
ankylosis. Unfavorable ankylosis is defined as a condition
in which the entire thoracolumbar spine is fixed in flexion
or extension, and the ankylosis results in one or more of the
following: difficulty walking because of a limited line of
vision; restricted opening of the mouth and chewing;
breathing limited to diaphragmatic respiration;
gastrointestinal symptoms due to pressure of the costal
margin on the abdomen; dyspnea or dysphagia; atlantoaxial or
cervical subluxation or dislocation; or neurologic symptoms
due to nerve root stretching. Fixation of a spinal segment
in neutral position (zero degrees) always represents
favorable ankylosis. 38 C.F.R. § 4.71a, General Rating
Formula for Diseases and Injuries of the Spine, Note (5).
The competent medical evidence of record not only establishes
that the spine is not fixed in any position, but shows none
of the signs of unfavorable ankylosis. The Board notes that
the veteran himself does not describe any of the listed
symptoms. In the absence of unfavorable ankylosis or its
functional equivalent, the claim for increased evaluation of
the lumbar spine must be denied.
The Board notes that, in his claim for increase, the veteran
refers to the presence of demonstrable deformity of a
vertebral body as warranting an increased evaluation. This
provision was included in older evaluation standards, which
were amended effective in September 2003. However, the
provision cited by the veteran is applicable to fractures of
the vertebrae, which are not shown here. Moreover, none of
the current medical records show deformity of the vertebra;
the degeneration of the joint spaces and discs is not the
pronounced breakdown and damage contemplated by the older
criteria.
In sum, after a review of the evidence of record, the Board
concludes that the schedular criteria for a disability rating
higher than 40 percent for a low back disability are not met.
Accordingly, to that extent, an allowance of the benefit
sought on appeal is not in order.
Lower Extremity Radiculopathy
As was noted above, the rating schedule as it applies to
spine disabilities was amended effective in September 2003.
The amended regulations specifically provide that
neurological manifestations of spinal disabilities are to be
rated separately. 38 C.F.R. § 4.71a, General Rating Formula
for Diseases and Injuries of the Spine, Note (1).
Previously, the criteria for evaluating many spine
disabilities, including lumbosacral strain, included
neurological manifestations. Separate disability ratings may
be assigned for distinct disabilities resulting from the same
injury so long as the symptomatology for one condition is not
"duplicative of or overlapping with the symptomatology" of
the other condition. Esteban v. Brown, 6 Vet. App. 259, 262
(1994).
The Board finds that the diagnosed radicular symptoms of the
lower extremities, identified by private and VA doctors as
related to the service connected lumbosacral strain with
degenerative disc disease, warrant assignment of separate
evaluations.
Diagnostic Code 8520 provides ratings for paralysis of the
sciatic nerve, which best reflects the anatomical location
and physical manifestations of the veteran's disability.
Diagnostic Code 8520 provides that mild incomplete paralysis
is rated 10 percent disabling; moderate incomplete paralysis
is rated 20 percent disabling; moderately severe incomplete
paralysis is rated 40 percent disabling; and severe
incomplete paralysis, with marked muscular atrophy, is rated
60 percent disabling. Complete paralysis of the sciatic
nerve, the foot dangles and drops, no active movement
possible of muscles below the knee, flexion of knee weakened
or (very rarely) lost, is rated 80 percent disabling. See
38 C.F.R. § 4.124a.
The earliest manifestation of radiculopathy shown in the
record is the report to a VA examiner of intermittent
radiating pain of the right leg in May 2003. No left leg
problems were reported. This means that the condition was
present as of the date of receipt of the claim currently
under appeal in April 2005. A May 2005 VA examination
confirmed the presence of intermittent right leg
radiculopathy, and again noted no left leg complaints. That
VA examiner was unable to provide any details as to the
severity of the condition on that date due to the veteran's
poor description. The Board finds that while the right leg
condition was present since May 2003, it was not compensable,
as the criteria for a compensable rating were not
demonstrated.
During the December 12, 2005 private examination of Dr. RNS,
however, the veteran complained of much more extensive
neurological problems of the right and left legs. He
reported weakness and a buckling sensation, and stated that
the pain radiated down his legs. The examiner diagnosed
sciatica and stated that the condition contributed to the
veteran's limitations of activity.
Subsequent VA and private evaluations continue to show
complaints of bilateral radicular pain. In August 2006, a VA
examiner stated that the veteran had "mild" radicular
symptoms involving the lower extremities; although physical
examination was normal, the veteran complained of
intermittent pain radiating down the legs. Dr. BSG also
described the problems as mild in December 2006, but he also
made physical findings of degenerative changes of the spine
corresponding to the complaints. The Board notes that Dr.
BSG reported only left leg pain at that time, while in
February 2008 he found no radicular symptoms.
The Board finds that separate evaluations of 10 percent for
mild radicular symptoms for the left and right legs are
warranted, effective December 12, 2005. Prior to that time,
solely the right leg was involved, based on subjective
complaints, and the evidence of record shows that the
symptomatology was not compensable. As of December 2005,
however, radicular symptoms were appearing intermittently in
both legs, with a degree of actual functional impairment, as
reported by Dr. RSN. The doctor also was able to relate the
complaints to physical changes of the spine in diagnosing
sciatica. The Board does note that symptoms have alternated
between the legs in recent records, and most recently are
absent, but at all times the veteran has reported the
radiculopathy is intermittent, and the waxing and waning of
the complaints appears to be consistent with the nature of
the back disability, which is subject to periodic flare-ups.
In sum, after a review of the evidence of record, the Board
concludes that criteria for separate 10 percent disability
ratings for lower extremity neurological impairment are met.
However, the criteria for ratings higher than 10 percent are
not met.
Extraschedular Considerations
Finally, the Board has considered whether the veteran should
be referred to the Under Secretary for Benefits or the
Director, Compensation and Pension Service, for possible
application of an extraschedular evaluation. No such
referral is warranted under 38 C.F.R. § 3.321(b). The
evidence does not present such an exceptional or unusual
disability picture as to render impractical the application
of the regular schedular standards. There is no evidence of
frequent hospitalization for service connected disabilities.
Moreover, the rating schedule does provide for higher
possible evaluations in this case, which makes its
application still practical.
The Board acknowledges the opinion of R.N.S. in December 2005
that the veteran's limited range of back motion and
fatigability in his back and legs make it "very difficult if
not impossible for him to return to his previous job. The
physical demands are just too great for [him]." However, the
disability ratings assigned are recognition that industrial
capabilities are significantly impaired. Van Hoose v. Brown,
4 Vet. App. 361 (1993). There is no indication from the
opinion that other types of employment would be precluded.
In the Board's view, the type of impairment demonstrated on
examination is completely consistent with the disability
ratings assigned.
In sum, the record when considered as a whole does not
indicate that the average industrial impairment from the back
disability would be in excess of that contemplated by the
assigned evaluations. Nor does it indicate that the
veteran's service connected disabilities alone have resulted
in marked interference with employment. Accordingly, the
Board has concluded that referral of this case for extra-
schedular consideration is not in order.
ORDER
An increased evaluation for lumbosacral strain with
degenerative disc disease is denied.
A separate 10 percent evaluation for right lower extremity
radiculopathy, effective December 12, 2005, is granted,
subject to the laws and regulations governing payment of
monetary benefits.
A separate 10 percent evaluation for left lower extremity
radiculopathy, effective December 12, 2005, is granted,
subject to the laws and regulations governing payment of
monetary benefits.
____________________________________________
Lloyd Cramp
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs